Supreme Court could hear NSA phone plan

Federal judge's rejection of 1979 decision sets up possible challenge

WASHINGTON – A federal judge may have laid the foundation for U.S. Supreme Court review of the National Security Agency’s telephone data surveillance program when he said it probably violates constitutional privacy rights.

In a first-of-its-kind ruling, U.S. District Judge Richard Leon said Monday in Washington that technology has outpaced the landmark 34-year-old Supreme Court decision underpinning the legal justification for the spy agency’s collection of telephone call data.

Leon said the decades-old decision, which let police track phone calls in the pre-wireless era, can’t be used as a precedent to determine the constitutional reach of surveillance in the digital age.

“It’s likely that this case will end up in the Supreme Court,” said Marc Rotenberg, president of the Electronic Privacy Information Center in Washington and a critic of the NSA program. “The government wouldn’t let stand an opinion that would prevent it from engaging in the collection of telephone records as it’s been doing.”

In the high court’s 1979 Smith v. Maryland ruling, the justices said Americans don’t have a Fourth Amendment privacy right to the phone numbers they call.

A 5-3 majority upheld the warrantless use of the pen register, a device that recorded numbers called from the home phone of a robbery suspect, Michael Lee Smith. Phone users knew their carriers had the data about their calls and harbored no reasonable expectations it couldn’t be used to solve a crime, the court said.

The secret court set up under the Foreign Intelligence Surveillance Act has said the Smith ruling provides the legal basis for the NSA program. That court has also said the NSA’s data collection complies with the Patriot Act, the federal statute enacted after the Sept. 11, 2011, terrorist attacks.

Leon, breaking with the FISA court, said the 1979 decision couldn’t resolve questions raised by the NSA program, which involves millions of calls with data being stored and analyzed for as long as five years.

“I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones,” wrote Leon, an appointee of Republican President George W. Bush.

The Supreme Court justices appear in no hurry to take up the matter. The court last month declined to hear a case challenging the secret court’s order that Verizon Communications Inc. turn over records of customers’ domestic phone calls.

The Electronic Privacy Information Center, which filed the suit, faced a high bar in its bid for Supreme Court review because it took the unusual step of filing its complaint directly with the high court. The justices generally want to see a record of fact-gathering and lower-court thinking before they take up a matter on their own.

“It’s far from certain” that the Supreme Court will accept the case, said Orin Kerr, a George Washington University law professor. The justices will rule the NSA’s program is legal if they take it, Kerr said, saying Leon misinterpreted the Smith decision.

“The fact that today’s phones combine telephony functions with other functions has nothing to do with whether the telephone surveillance is different,” Kerr said. “The monitoring that the NSA is doing of each phone is obtaining the same information as the Supreme Court ruled on in 1979.”

The Justice Department has 30 days to appeal Leon’s ruling. Leon wrote in his opinion that he expects the appellate process “to consume at least the next six months.”

In the meantime, he suspended his temporary injunction against collecting “metadata” from the Verizon Wireless accounts of the two plaintiffs “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues.” One of the plaintiffs is legal activist Larry Klayman, who has filed dozens of lawsuits against administrations of both parties.

Should the U.S. Court of Appeals in Washington adopt Leon’s reasoning, “it certainly is going to be a Supreme Court issue,” said Randy Barnett, a law professor at Georgetown University, who has urged the Supreme Court to re-examine the 1979 ruling.

In the Smith case, the police “had reason to believe it was him” Barnett said. They weren’t “putting a pen register on everyone’s phone in the United States.”

Divergent rulings among any of the country’s appeals courts would almost guarantee swift Supreme Court review.

At least four other lawsuits over the NSA phone program are percolating in district courts. A ruling is pending on the government’s request to dismiss one of the suits in a case filed by the American Civil Liberties Union in Manhattan federal court.

The existence of the NSA program was disclosed this year in leaks by the former NSA contractor Edward Snowden.

The records collected under the NSA program consist of metadata that includes the numbers used to make and receive calls and their duration. They don’t include information about the content of the communications, or the names, addresses or financial information of parties, according to government filings in the case.

Leon said the ubiquity and versatility of today’s smartphones has dramatically altered the amount of information available and “what that information can tell the government about peoples’ lives.”